“Now, my Lords, I must say, that in the course of my own experience I
have never seen a case got up in the preparation with more care and industry
than this one has been, and I have never seen a trial conducted with greater
temper and talent and patience than this was, or with less of incidental mishap
in the course of it. I have never known a case more thoroughly tried; and I
must say that I do not expect ever to see a case more thoroughly tried than
this case was. Such was my impression at the time, and such is my opinion now.”
(The Lord President, Court of Session, 1854)

Gillespie v Russel

The Torbanehill Case

Reports of the Jury Trial of 1853 and the
Motion for a New Trial

with Appendix

A New Edition

This is a verbatim
record of the testimonies of many scientists, mineral engineers, coalmasters,
miners and others called to give evidence in a famous jury trial in the Court
of Session, over a period of six days, from 29th July to 4th
August 1853.
The pursuers were Mr & Mrs William Gillespie of
Torbanehill, near Bathgate, in West Lothian, the defenders James Russel &
Son, coalmasters, of Blackbraes, near Falkirk, in Stirlingshire. William
Gillespie was a theologian, his wife the proprietrix
of the lands of Torbanehill; James Russel, besides being a coalmaster
and industrialist with interests in iron and shipping, was a lawyer and a
founding partner of the Falkirk law firm, Russel & Aitken.

In and prior
to January 1850, the defenders had a mineral lease of the lands of Boghead,
which adjoined the pursuers’ property; and in that year they acquired a similar
lease of Torbanehill for a period of twenty-five years. The lease was of “the
whole coal, ironstone, iron-ore, limestone and fireclay (but not to comprehend
copper, or any other minerals whatsoever, except those specified) in the lands
of Torbanehill.” A seam which the defenders had worked in Boghead was continued
in Torbanehill and was there mined in great quantities and supplied to home and
export markets, apparently at such a profit as to attract the attention of Mr
Gillespie, who, encouraged by a Bathgate solicitor, came to believe that what
was being extracted was not coal but a valuable mineral not prescribed by the
lease.

The
Gillespies pursued the case in the Court of Session, where it was tried before
the Lord Justice-General and a jury, in a hearing which started on 29th July
and ended on 4th August 1853. Seventy-nine witnesses, including
distinguished scientists, mining engineers, coal managers and miners, were
called to give evidence. After six days, the jury took only a few minutes to
reach a verdict in favour of the defenders.

According to
Professor Butt’s biography of James “Paraffin” Young, who had established a
works not far from the Boghead and Torbanehill collieries, the usefulness of
Young’s patent for a process of extracting oil from the material supplied by
James Russel & Son depended on its classification as coal, so the Court’s
decision protected the value of the patent and a long-term contract for the
supply of the material, thus enabling his firm to continue production until the
expiry of the patent and the start of the shale oil industry in 1863.1

Notwithstanding
the verdict of 1853, the rejection of a motion for a new trial in the Court of Session
(1854) and the failure or withdrawal of appeals to the House of Lords (1859),
the dispute between the landowner and the coalmasters appears to have ended in
a settlement in 1860, according to James Urquhart’s biography of William
Gillespie.2 Reference to a voluntary agreement "whereby
Gillespie was paid one-seventh of the value" is made also in H. R. J.
Conacher’s contribution to The Oil-Shales of the Lothians.3

The
transcripts of the trial 4are such a fascinating verbatim record of
the testimonies of so many scientists, mineral engineers, coalmasters, miners
and others that I decided to reproduce and publish a new edition of the 1862
transcript in the hope that it might be found a useful and interesting primary
source for the study of science, law, coal-mining and speech in the middle of
the 19th century. The appendix includes reports by Dr Frederick Penny,
Professor of Chemistry at the AndersonianUniversity (now the University of Strathclyde), Dr John Fleming, Professor of
Natural Science, NewCollege, Edinburgh, and James Nicol, Professor of
Natural History at the University of Aberdeen.

The new
edition, ISBN 0-9541663-0-2, with a preface by William Anderson of Russel &
Aitken, is published by Atholl Press, Edinburgh. It has 402 pages, excluding preface,
introduction, list of contents and plates.*

Notes:
1.John Butt, James
“Paraffin” Young, Edinburgh, 1983
2.James Urquhart, The
Life and Teaching of William Honyman Gillespie of Torbanehill,Edinburgh, 1915.
3.H. R. J. Conacher, History
of the Scottish Oil-Shale Industry, The Oil-Shales of the Lothians (3rd
edition), Edinburgh, 1927.
4.There are two published
transcripts of shorthand notes taken at the trial, one by Alexander Watson
Lyell (Bell & Bradfute, Edinburgh, 1853), the other by J. Irvine Smith
(Neill & Company, Edinburgh, 1862). Both are extremely rare books.